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Case 3:05-cv-04682-WHA Document 5 Filed 11/30/2005 Page 1 of 11
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7 C05-04682 WHA
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IN THE UNITED STATES DISTRICT COURT
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Court
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Court
of California
District
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of California
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District
States
District
States
16 SUPPLEMENTAL ORDER TO
the Northern
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ForNorthern
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For the
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INTRODUCTION
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The purpose of this supplemental order is to guide the parties on recurring practical
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questions that arise prior to trial and to impose certain requirements for the conduct of the case.
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Counsel must please read this order and follow it.
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SERVICE OF THIS ORDER
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1. For cases originating in this Court, plaintiff(s) must serve this order and the order
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setting the initial case management conference (along with any other required pleadings) on each
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defendant. For cases removed from state court, the removing defendant(s) must serve this order and
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the order setting the initial case management conference (along with any other required pleadings)
immediately on each and every party that has previously appeared or that appears within thirty days
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Case 3:05-cv-04682-WHA Document 5 Filed 11/30/2005 Page 2 of 11
1 after removal. Thereafter, any existing party to the action that brings a new party into the action
2 must immediately serve a copy of this order and the order setting the initial case management
3 conference (along with any other required pleadings) on the new party.
4 CASE MANAGEM ENT CONFERENCE
5 2. The parties will please address the following in their joint case management statement
6 (not to exceed twelve pages) due at least fourteen calendar days before the case management
7 conference:
8 (a) The basis for this Court’s subject-matter jurisdiction and whether any
9 issue exists regarding personal jurisdiction or venue;
10 (b) A brief description of the claims and defenses and a description of
11 any related proceeding, including any administrative proceedings;
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1 magistrate judge and, if so, whether additional parties are likely to be joined;
2 (o) A service list for all counsel that includes telephone and
3 fax numbers; and
4 (p) To the extent not addressed above, all other items set forth in
5 Local Rule 16-10.
6 3. Each party shall be represented at the case management conference by counsel
7 (preferably lead counsel) prepared to address all such matters and with authority to enter
8 stipulations and to make admissions.
9 4. Pursuant to FRCP 26(d), no formal discovery shall be initiated by any party until
10 after the meet-and-confer session required by FRCP 26(f), except by stipulation or prior court
11 order. As soon as a party has notice of this order, however, the party shall take such affirmative
United States District Court
12 steps as are necessary to preserve evidence related to the issues presented by the action,
13 including, without limitation, interdiction of any document-destruction programs and any
For the Northern District of California
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Case 3:05-cv-04682-WHA Document 5 Filed 11/30/2005 Page 4 of 11
1 SETTING MOTIONS
2 7. Counsel need not request a motion hearing date and may notice non-discovery
3 motions for any Thursday (excepting holidays) at 8:00 a.m. Case management and final pretrial
4 conferences will be set by the Court.
5 FORM OF SUBMISSIONS
6 8. On summary judgment motions, joint statements of undisputed facts are not
7 required but are helpful if completely agreed upon. Please do not file separate statements of
8 “undisputed facts.”
9 9. Reply declarations are disfavored. Opening declarations should set forth all facts
10 on points foreseeably relevant to the relief sought. Reply papers should not raise new points that
11 could have been addressed in the opening.
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12 10. The title of the submission must be sufficient to alert the Court to the relief
13 sought; for example, please do not bury a request for continuance in the body of a memorandum.
For the Northern District of California
14 11. All submissions filed with the Court shall include on the cover sheet the date and
15 time of the hearing or conference. Counsel should include their facsimile transmission numbers
16 along with their telephone numbers on their papers.
17 DISCOVERY
18 12. The following paragraphs on discovery provide counsel and the parties with
19 views and guidelines of Judge Alsup so that they can plan accordingly. For good cause, the
20 parties are invited to propose any modifications in their joint case management conference
21 statement. Unless and until modified, however, the following provisions shall supplement the
22 requirements of the Federal Rules of Civil Procedure and the local rules.
23 13. In responding to requests for documents and materials under FRCP 34, all parties
24 shall affirmatively state in a written response the full extent to which they will produce materials
25 and shall, promptly after the production, confirm in writing that they have produced all such
26 materials so described that are locatable after a diligent search of all locations at which such
27 materials might plausibly exist. It is not sufficient to state that “responsive” materials will be or
28 have been produced. Such a response leaves open the distinct possibility that other responsive
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12 the specific source for each produced item as well as for each item withheld on a ground of
13 privilege, using the unique identifying numbers to specify documents or ranges. Materials
For the Northern District of California
14 produced in discovery should bear unique identifying control numbers on each page.
15 15. To the maximum extent feasible, all party files and records should be retained
16 and produced in their original form and sequence including file folders, and the originals should
17 remain available for inspection by any counsel on reasonable notice.
18 16. Except for good cause, no item shall be received as case-in-chief evidence if the
19 proponent has failed to produce it in response to a reasonable and proper discovery request
20 covering the item, regardless of whether any discovery motion was made. A burden or
21 overbreadth or similar objection shall not be a valid reason for withholding requested materials
22 actually known to counsel or a party representative responsible for the conduct of the litigation.
23 17. Privilege logs shall be promptly provided and must be sufficiently detailed and
24 informative to justify the privilege. See FRCP 26(b)(5). No generalized claims of privilege or
25 work-product protection shall be permitted. With respect to each communication for which a
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1 claim of privilege or work product is made, the asserting party must at the time of assertion
2 identify:
3 (a) all persons making or receiving the privileged or protected
4 communication;
5 (b) the steps taken to ensure the confidentiality of the communication,
6 including affirmation that no unauthorized persons have received the
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8 (c) the date of the communication; and
9 (d) the subject matter of the communication.
10 Failure to furnish this information at the time of the assertion will be deemed a waiver of the
11 privilege or protection. The log should also indicate, as stated above, the location where the
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1 20. Counsel and parties shall comply with FRCP 30(d)(1). Deposition objections
2 must be as to privilege or form only. Speaking objections are prohibited. Under no
3 circumstances should any counsel interject, “if you know,” or otherwise coach a deponent.
4 When a privilege is claimed, the witness should nevertheless answer questions relevant to the
5 existence, extent or waiver of the privilege, such as the date of a communication, who made the
6 statement, to whom and in whose presence the statement was made, other persons to whom the
7 contents of the statement have been disclosed, and the general subject matter of the statement.
8 Private conferences between deponents and attorneys in the course of examination, including a
9 line of related questions, are improper and prohibited except for the sole purpose of determining
10 whether a privilege should be asserted.
11 21. Deponents and their counsel must make a good-faith effort to prepare for
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12 depositions and to refresh witness memories on important matters in the suit about which the
13 witness reasonably should be expected to have knowledge. Deponents who claim to lack
For the Northern District of California
14 recollection during their deposition but who later claim at trial to have had their memories
15 refreshed in the interim, may be, among other things, impeached with their previous failures of
16 recollection during their depositions or be subject to preclusion. In preparing deponents,
17 defending counsel shall segregate and retain all materials used to refresh their memories and
18 shall provide them to examining counsel at the outset of the deposition.
19 22. To the maximum extent feasible, deposition exhibits shall be numbered in a
20 simple manner that will allow the same numbering at trial. In discovery, counsel shall agree on
21 blocks of exhibit numbers to be used by the respective parties. Identical exhibits should not be
22 re-marked, but various versions of the same document, such as copies with hand notes added,
23 should be separately marked if used. See Local Rule 30-2(b)(3).
24 23. FRCP 26(a)(2)(B) requires disclosure of all opinions, bases, reasons and “other
25 information considered” by an expert. Counsel shall preserve all drafts of expert reports (partial
26 or complete) and notes and other evidence of communications with experts (or with any
27 intermediaries between counsel and the experts) on the subject of this actual or potential
28 testimony, and shall instruct their experts and any intermediaries to do likewise. All such
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1 materials shall be produced upon expert designation (unless all parties otherwise stipulate in
2 writing). This requirement does not apply to intermediate drafts prepared solely by the
3 testifying expert not provided to or discussed with anyone else. Counsel’s private notes of
4 conversations will be treated as work product and need not be produced absent the showing
5 required by FRCP 26(b)(3).
6 24. With respect to depositions under FRCP 30(b)(6), the fundamental purpose is to
7 allow a party to notice a deposition by subject matter, thereby requiring the respondent to
8 designate and to produce one or more organization witnesses knowledgeable on the designated
9 topic, a useful procedure when the roles of percipient witnesses controlled by an adverse party
10 are unknown. In some cases, however, counsel routinely appear to notice
11 Rule 30(b)(6) depositions on numerous and wide-ranging topics, including even the basis for
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12 “contentions” made by adverse parties. To obviate disputes and to give guidance, these
13 guidelines will be observed:
For the Northern District of California
14 (a) Without a prior order increasing the limit, a party may seek
15 Rule 30(b)(6) depositions from another party on up to a total of ten subject
16 matters (for the entire case) described with “reasonable particularity.” In framing
17 the subjects, it is normally improper to ask for Rule 30(b)(6) deponents to testify
18 concerning the entire basis of a claim or defense. On the other hand, examples of
19 proper subjects, which would require the respondent to find and to produce
20 knowledgeable deponents, include “the time line of research and development
21 leading to the invention in question” or “the efforts undertaken by defendant to
22 locate documents responsive to plaintiff’s document request.” The notice should
23 be directed at discovering percipient facts in the possession of the adverse party,
24 not at forcing a supposed “fact witness” to appear and defend the entire thesis of a
25 claim or defense. If a notice includes an overbroad topic, the overbroad topic
26 shall be unenforceable and may not be later replaced with a proper topic.
27 (b) Each witness-designee deposed for one half-day or more in a
28 Rule 30(b)(6) deposition shall count as a single deposition for purposes of the
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1 deposition limit under FRCP 26 or under any case management order setting a
2 limit on the number of depositions. A corporate designee may, immediately after
3 being deposed on the stated subject, be deposed in his or her individual capacity.
4 Both such sessions shall count together as a single deposition (although they
5 should be separately transcribed). If two designees, to take another example, are
6 interrogated, each for one half-day or more, then they count as two depositions.
7 (c) If an organization cannot reasonably locate a witness to testify
8 based on personal knowledge, there is no requirement under Rule 30(b)(6) for the
9 organization to “woodshed” or to “educate” an individual to testify on the subject.
10 If the organization does not produce any such deponent, however, the organization
11 may not present case-in-chief evidence at trial or on summary judgment on that
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1 conference will be required. After the telephone conference, counsel should submit their
2 proposed order (agreed as to form) via the same e-mail address or by United States mail. This
3 paragraph applies only to cases wherein discovery is being supervised by the district judge rather
4 than by a magistrate judge or special master. Counsel are still responsible for filing or e-filing
5 any and all discovery letters.
6 DISCLOSURES
7 27. Apart from discovery, Rule 26 requires certain automatic disclosures and requires
8 them to be made in a timely manner. Under Rule 37(c), untimely-disclosed materials may not be
9 used at trial or on summary judgment unless the delay in disclosure is “harmless” or unless
10 “substantial justification” for the delay is shown.
11 COMMUNICATIONS WITH CHAMBERS
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12 28. Please do not send any letters to the Court (except for requests for discovery
13 conferences, short cover letters for dismissals, orders agreed-upon as to form, or chambers copies
For the Northern District of California
14 of electronically-filed documents). When corresponding with the Court by letter, always identify
15 whom you represent. Please do not fax or messenger anything to chambers without advance
16 permission specific to the item. If you need to messenger a letter to the Court, please have it
17 taken directly to the Clerk’s Office. If you want the official file to be complete, you must either
18 take your letter to the Clerk’s Office on the 16th floor and request it to be filed in the official
19 files, or mail it to the Clerk’s Office for filing, or e-file it if the case is an e-filed case; the
20 chambers staff is not responsible for filing your documents.
21 29. You may contact the courtroom deputy, Dawn Toland (on the 16th floor in the
22 Clerk’s Office), at 415-522-2020 with appropriate inquiries. Except for the letters described
23 above, please do not attempt to make contact by telephone or any other ex parte means with
24 chambers staff.
25 CROSS REFERENCE TO OTHER STANDING ORDERS AND GUIDELINES
26 30. The Court has separate standing guidelines for preparation for the final pretrial
27 conference and trial. In securities cases, the Court has a standing order concerning early notice to
28 class members. They are always available for review at the website for the United States District
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